Valasco v. West

ORDER PER CURIAM: On June 11, 1998, the Court received the appellant’s Notice of Appeal (NOA) to a May 21, 1998, Board of Veterans’ Appeals (Board) decision which determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for the cause of the veteran’s death. On July 23, 1998, the Secretary moved to dismiss the appeal for lack of jurisdiction, citing Tablazon v. Brown, 8 Vet.App. 359 (1995). The Secretary has pointed to a failure of the Regional Office (RO) to issue a Statement of the Case (SOC) in response to a Notice of Disagreement (NOD) dated December 30, 1985, relating to an October 1985 rating decision. The Secretary argues that because of the procedural defect occasioned by the RO’s failure to issue an SOC in response to the appellant’s December 1985 NOD, “the October 1985 rating decision and all subsequent adjudications of the claim were rendered nonfinal.” Sec. Mot. at 4. Because of this, according to the Secretary, there is no final BVA decision for the Court to review and, thus, no jurisdiction. A June 1979 rating decision, which denied service connection for the cause of the veteran’s death, became final because a substantive appeal to that decision was never filed after an SOC was issued in August 1979 in response to an NOD filed earlier that month. In October 1985 the appellant sought to reopen her claim, a confirmed rating decision was issued, and she filed an NOD in December 1985. No SOC was issued with respect to this NOD. The appellant again sought to reopen her claim in December 1995. The RO issued a rating decision in February 1996 and the appellant filed an NOD in June 1996, which resulted in a July 1996 SOC, leading to the current appeal before the Court. Jn Tablazón v. Brown, the RO never issued an SOC with respect to an original claim. 8 Vet.App. at 361. The Court held that this procedural defect rendered the rating decision non-final and the appellant was not required to submit new and material evidence to reopen his claims. This appeal differs from Tablazón, which the Secretary has read too broadly. In this ease the June 1979 rating decision denying service connection for the cause of the veteran’s death became final. 38 U.S.C. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.302(b) (1992); see Roy v. Brown, 5 Vet.App. 554 (1993); Rowell v. Principi, 4 Vet.App. 9, 17 (1993); Cuevas v. — 173 — Principi 3 Vet.App. 542, 546 (1992) (where claimant did not perfect appeal by timely filing substantive appeal, RO rating decision became final). Therefore, the appellant was and still is required to submit new and material evidence to reopen her claim. 38 U.S.C. § 5108. The Secretary has focused on the appellant’s intermediate attempt to reopen her claim, which is still pending in appellate status. Regardless of the status of the October 1985 claim, a final rating decision exists from June 1979 and a stand-alone attempt to reopen this claim occurred in December 1995. Therefore, notwithstanding an intermediate rating decision which never became final, the Court finds that the appellant properly sought to reopen her claim in December 1995 and filed a jurisdiction-conferring NOD, and a final Board decision was issued. The Court holds that it has jurisdiction to review the May 31, 1998, Board decision. 38 U.S.C. § 7266(a); In the Matter of Fee Agreement of Cox, 10 Vet.App. 361, 366 (1997) (Court “has jurisdiction to review VA adjudicative actions only under 38 U.S.C. § 7252(a) and pursuant to a final Board decision”), vacated on other grounds sub nom. Cox v. West, 149 F.3d 1360 (Fed.Cir.1998). Upon consideration of the foregoing, it is ORDERED that the Secretary’s motion to dismiss is denied. It is further ORDERED that the Secretary designate the Record on Appeal within 30 days after the date of this order.